TSUI LAI WAI v. THE INCORPORATEDOWNERS OF LOK KU HOUSE

LDBM 58/2021

[2022] HKLdT 32

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 58 OF 2021

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J U D G M E N T

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A.  Introduction

1.  The core issue of this application is whether or not the applicant, the registered owner of three 3/F “flat roof” units (the 3 Units) of Lok Ku House at 118 Jaffe Road, Hong Kong (the Building), is entitled to electricity and water supply to the 3 Units (the said Supply) under the deed of covenant of the Building (the DMC).

2.  The respondent, the incorporated owners of the Building, opposed to the said Supply.

3.  The respondent alleged that (i) the 3 Units had been approved by the Building Authority (BA) as “flat roofs” only; (ii) unauthorized building works (the said UBW) have, without BA’s approval, been erected over the 3 Units and they are illegal; (iii) BA had issued 3 notices under s.24C(1) of Buildings Ordinance[1] (BO) to warn about their contravention of BO (the 3 Notices); and (iv) BA had registered the 3 Notices against the 3 Units at the Land Registry. It says that it was and is under a statutory duty to seek the removal of the said UBW, whose existence had been allowed or permitted by the applicant in breach of the DMC.

4.  The applicant, however, contended that she has a right to the said Supply under the DMC and that the respondent had, in breach of the DMC, obstructed her exercising the said right. She sought against the respondent various declarations, a mandatory order and damages for alleged rental loss.

5.  The respondent in turn counterclaimed for an injunction requiring the applicant to comply with the demolition and reinstatement works stated in the 3 Notices.

6.  In her written opening, Ms Gigi Ho appearing for the applicant (Ms Ho) first abandoned applicant’s claim for damages.

7.  During parties’ oral opening, the applicant further submitted to judgment on the counterclaim. By parties’ consent, the injunction sought in the counterclaim was granted by this Tribunal with a time limit of 6 months for the applicant to comply with (the Injunction) with costs of the counterclaim payable to the respondent.

8.  In resolving applicant’s outstanding claims for declarations and order, it remains, however, still necessary for this Tribunal to describe below the said UBW, to explain how they put parties into conflict in the past and to address the importance, if any, of their ordered demolition under the Injunction.

B.  Witnesses

9.  At trial, the applicant elected to give evidence while Mr Harrison Cheung appearing for the respondent (Mr Cheung) called the chairman of its management committee, Mr Ma Yiu Woon (Mr Ma), as the respondent’s sole witness.

10.  Much of what the 2 witnesses testified are common ground or not disputed by the opposite party. In most cases, I have accepted these common and undisputed facts as the backbone of facts found below.

11.  For the remainder of their evidence, I have primarily assessed, and decided whether to accept them or not, by reference to their inherent probabilities and contents of the documents, especially contemporaneous documents, if any.

12.  I have also watched out for consistency or inconsistency of witnesses’ testimony. Under cross-examination, both the applicant and Mr Ma had contradicted themselves on a few points which will be addressed below. In so far they have made admissions in the box, I give full weight to, and accept, the same. I have also taken these discrepancies into account in assessing their general credibility.

13.  In addition, Mr Ma is 90 years old and unable to read English. Somehow, his witness statement was written in this unfamiliar language to him. He had, one observed, great difficulty adopting in chief his witness statement though it had allegedly been translated to him before he signed.

14.  And considering Mr Ma’s manner of answering questions in the box under cross-examination, his witness statement hardly, one thinks, looked like his viva vocal evidence had he testified orally in chief in the traditional way. At various points, his statement looked as if a lawyer was making arguments as an advocate.

15.  And words not used and unheard of by Mr Ma were, one thinks, “put into his mouth” in his statement. For example, he referred to Code of Practice on Building Management and Safety (COP) issued by the Secretary for Home Affairs under s.44(1)(b) of Building Management Ordinance[2] (BMO) in his statement but he admitted unheard of COP under cross-examination.

16.  In my view, the method and manner of preparing witness statement for Mr Ma referred to in the preceding 3 paragraphs does more harm than good to his general credibility and reliability. Hence, at certain points of evidence in conflict, this Tribunal prefers the evidence of the applicant to that of Mr Ma on this ground.

17.  As shall be seen in my factual findings below, I have accepted neither the applicant’s evidence nor Mr Ma’s evidence in their entirety at the end of the day.

C.  Factual Findings

18.  I find the following facts in this section relevant to my determination of applicant’s outstanding claims.

19.  In May 1966, the occupation permit (OP) of the Building was issued. Under the said permit, “two shops for non-domestic use” were permitted for the ground floor. “One office per floor for non-domestic use” was permitted for the 1^st, 2^nd and 3^rd floors. “Three tenements per floor for domestic use” were permitted for the 4^th to 16^th floors (inclusive).

20.  The Building was thus, I find, built with a total of 16 floors, with shops and offices at 3/F and below permitted for non-domestic use and tenements at 4/F and above permitted for domestic use. Nothing, it should be noted, was said about permitted user of “flat roofs” of the Building.

21.  Looking at photos of the 3 Units, including their external views taken from Jaffe Road below, a small block plan at top right corner of one 3/F plan of the Building (1^st 3/F Plan)[3] and a small site plan at the top right corner of another 3/F plan of the Building (2^nd 3/F Plan)[4] produced before me, the residential tower of the Building (containing 3 units per floor from 4^th to 16^th floors) was like an English letter “T” with its vertical line pointing towards Jaffe Road. The said tower stands on a larger rectangular 3/F podium of the Building.

22.  Notwithstanding absence of approved building plans before me, considering, inter alia, OP, the 1^st and 2^nd 3/F Plans, the photos and other materials before me, I find it likely that two uncovered flat roofs existed on this 3/F podium to the left and right of the single 3/F office permitted under OP when the Building was built in the first place. This is self-evident in 1^st 3/F Plan where one can see one single office unit enclosing the lifts in the middle of the floor with the 2 flat roofs to its left and right.

23.  In October 1966, the DMC came to be executed by 8 groups of owners, described therein as the “First Owners” to “Eighth Owner[5]”, and registered at the Land Registry. The land over which the Building was then built (the Land) and the Building erected thereon was notionally divided in the DMC into a total of 77 undivided shares set out in 1^st Schedule thereto.

24.  In the said 1^st Schedule, the First to Seventh Owner(s) were respectively allocated 1/77^th share of the Land and the Building each with exclusive use and occupation of one upper floor residential flat named “A”, “B” or “C” while the Eighth Owner[6] was given the remaining 70/77^th shares of the Land and the Building with exclusive use and occupation of the whole Building (including the roof) save for the other 7 upper floor residential flats of the First to Seventh Owner(s). “Flat roof” was nowhere mentioned in this 1^st Schedule.

25.  Neither was “flat roof” found in “common parts services and facilities” defined in the DMC, which includes (i) the “entrances yards staircases landings and passages” not within such part of the Building exclusively owned by one or several owner(s); (ii) “the sewers, gutters, drains, watercourses, cable, walls, pipes, pumps, tanks, wires, sanitary fittings, fire fighting and refuse disposal equipment and other apparatus and equipment used or installed for the benefit” of the Building “as part of the amenities thereof and not by any individual owner for his own use or purpose”; and (iii) “the lifts” (italics supplied for emphasis)[7].

26.  Under the DMC, 4^th to 16^th floors were restricted to be used for “private residential purposes only” while G/F to 3/F shall be used for “commercial purposes only”. And no part of the Building shall be used “as an inn, hotel, boarding house, apartment house or lodging house”[8].

27.  Under the DMC, “hanging up clothing or laundry outside the Building or in the common areas” within it or any part thereof is not allowed or permitted except with written consent of the manager under the DMC, provided that (i) air-conditioners may be installed in exterior walls or windows of any unit and (ii) “owner of any space on the Main Roof may use such space for hanging up clothing or laundry”[9]. Again, no reference was made about “flat roofs” in the proviso here.

28.  By clause 3 of the DMC, “each owner” shall hold his part of the Building and the Land “subject to and with the benefit of the following rights privileges and obligations” including … (d) “the free and uninterrupted passage and running of water sewage gas and electricity from and to his part of [the Building] through the sewers, drains, watercourses, cables, pipes, pumps, tanks and wires which now are or may at any time hereafter be in under or passing through” the Land and the Building or any part(s) thereof (Clause 3(d)) (italics supplied for emphasis).

29.  The DMC further provides that, if a separate government water meter is at any time installed for any unit, then the costs of such meter and the installation thereof shall be paid by the owner of such unit[10], and the water charges for the supply of water to such unit shall be paid by the owner thereof[11]. If two or more units share the same government water meter, then the water charges for the supply of water to such group of units shall be shared and paid by the owners thereof in proportion to the number of such units for the time being owned by such owners[12].

30.  The word “owner” is defined in the DMC to include “each person in whom for the time being the legal estate in any undivided share in [the Land] and [the Building] is vested…”[13].

31.  Since about 1973, the said UBW, I accept Mr Ma’s words[14], has existed.

32.  Looking at the contents of the 3 Notices, the said UBW were, I am satisfied, erected without prior approval or consent of BA in contravention of s.14 of BO.

33.  Comparing 1^st 3/F Plan against 2^nd 3/F Plan, looking at 3/F corridor photos produced before me and giving full weight to applicant’s admissions in the box, the said UBW likely included, I think:

(i)	erection of walls extending to all four sides of the 3/F podium of the Building and enclosing the original two uncovered flat roofs or surface to left and right of the then single office unit in the middle of 3rd floor of the Building; and
(ii)	creation of extra 3-dimensional enclosed units marked “C”, “H” and “J” with their own entrances and own windows over part of the aforesaid 2-dimensinoal surfaces and of a new horizontal corridor connecting these new units to and from the lifts (and staircase) in the middle of 3/F podium of the Building.

34.  As the applicant described in her statement, there were altogether 6 residential flats and 4 “flat roof” units on 3/F of the Building, marked “A” to “H”, “J” and “K”, after, among others, the said UBW (and unauthorized building works at, now, “flat roof unit B”) were carried out at 3/F of the Building (the original single office unit in the middle of the floor was partitioned into 3 units marked “A”, “D”, “E”” on its left and another 3 units marked “K”, “F” and “G” on its right, with the creation of one horizontal corridor for accessing all 6 of them and the 4 flat roofs units at its two ends).

35.  In 1978, the respondent was incorporated.

36.  Since about 2001, Mr Ma has served as the chairman of the management committee of the respondent. As chairman of the respondent, he became concerned about the said UBW.

37.  In 2015, Mr Ma on behalf of the respondent complained of, inter alia, the said UBW to one district councilor who related the said complaint to BA in August 2015. In July 2017, Mr Ma also wrote to respondent’s insurer to seek clarification over the effect, if any, of the said UBW over policy taken out by the respondent.

38.  In November 2017, the applicant purchased the 3 Units at $700,000 each[15].

39.  By 3 assignments all dated 6 November 2017 (the 3 Assignments), the applicant was respectively assigned with:

(i)	1/10 of 4/77 shares of the Land and the Building together with exclusive use and occupation of “flat roof unit C” on 3/F of the Building;
(ii)	another 1/10 of 4/77 shares of the Land and the Building with exclusive use and occupation of “flat roof unit H” on 3/F of the Building; and
(iii)	another 1/10 of 4/77 shares of the Land and the Building with exclusive use and occupation of “flat roof unit J” on 3/F of the Building.

40.  Looking at 2^nd 3/F Plan before me, “flat roof” unit 3C was at one end of 3/F podium of the Building fronting Jaffe Road whereas “flat roof” units 3H and 3J were at the other end of 3/F, with unit 3H fronting Jaffe Road.

41.  The 3 Assignments were all made in favour of the applicant “subject to and with all benefit of the DMC” and had been registered at the Land Registry. The assigned properties in them were all certified to be “non-residential” properties within Stamp Duty Ordinance[16].

42.  Apart from the 3 Units, the applicant owns no other unit in the Building.

43.  I accept applicant’s evidence that she had inspected the 3 Units before her purchase and that the said Supply was available before, at and shortly after her purchase. But not for the said inspection and the said Supply, one thinks it unlikely that she would have purchased the 3 Units for no small sums in the first place.

44.  Photos of 3/F switchbox[17] with letters of “C”, “H” and “J” painted in black on switches (which, I accept, were switched off) regarding electricity supply to, inter alia, the 3 Units[18] and of water pipes with letters “C”, “H” and “J” painted in red on them originally connecting to the 3 Units (but with a section of each of them and their respective water meters removed)[19] produced by the applicant before me also corroborate her evidence on this point.

45.  Since at least 2017, the respondent has engaged On Wing Property Management Company Limited (the Manager) to manage the Building.

46.  In about late 2017, the applicant enquired one Madam Wong of the Manager (Mdm Wong) about management fee payable for the 3 Units and was advised that none was payable.

47.  In December 2017, the applicant applied to the Manager for issuance of smart card for opening entrance gate to G/F lobbies of the Building but was rejected. She took out legal proceedings for the same in 2018. Settlement was only reached in mid-2019 when she was issued with smart cards to enter the Building.

48.  In the meantime, on 29 January 2018, BA issued the 3 Notices addressed to “owner(s)” of “flat roof unit C”, “flat roof unit H” and “floor roof unit J” on 3/F of the Building, notifying each owner that “building works” comprising of “one structure on and over the approved flat roof (bold and underline supplied)” have been carried out in breach of s.14(1) of BO and that the said notices would be registered at Land Registry on 1 March 2018 if the building works are not demolished, or altered in such manner to comply with BO, before that date.

49.  On 15 March 2018, each of the 3 Notices was registered at the Land Registry against the 1/10 of 4/77 shares of the Land and the Building owned by the applicant for each of 3 Units.

50.  As the applicant was interested to rent out the 3 Units (which had been unoccupied since her purchase of them in November 2017), she decided to renovate them and applied in December 2019 to the Manager for permission to undertake renovation to them (the Application). Mdm Wong, I find, rejected the Application.

51.  I do not accept Mr Ma’s claim in his witness statement that Mdm Wong merely replied the applicant that she was required to make a “formal” application and, hence, the Application was “never” rejected. Mr Ma contradicted himself to say in respondent’s notice of opposition that the Application was objected to because of erection of the said UBW over the 3 Units[20]. I find that the applicant was indeed informed by Mdm Wong of “rejection” of the Application “due to erection of the said UBW over the 3 Units” as the applicant had testified. I reject Mr Ma’s excuse of absence of formal application. Indeed, he repeatedly uttered the same Chinese phrase of “同流合污” under cross-examination to explain that the respondent rejected the Application in order to avoid giving legitimacy to the said UBW illegally erected over the 3 Units.

52.  Mr Ma, I also accept applicant’s evidence, had from time to time scolded the applicant and prospective tenants introduced to her by estate agent(s) she engaged to rent out the 3 Units.

53.  For purpose of renting out the 3 Units, the applicant also applied in 2019 to Water Supplies Department (WSD) and The Hongkong Electric Co. Ltd. (HK Electric) to become new user of water accounts, and of electricity accounts, of the 3 Units, and to reconnect the said Supply to them.

54.  On 3 December 2019, the applicant arranged technicians of HK Electric and her contractor (collectively the Party) to inspect water and electricity supply apparatus to the 3 Units and to reconnect the said Supply (the applicant contradicted herself to have agreed with Mr Cheung under cross-examination that the purpose of the attendance of the Party at the Building that day was for reinstallation of water meters regarding, and reconnection of electricity supply to, the 3 Units).

55.  After the Party arrived at 3/F of the Building, Mr Ma turned up, objected to reconnecting the said Supply due to erection of the said UBW over the 3 Units and called for police. After police arrived, Mr Ma continued to demand the Party to leave and the Party finally left on their own accord.

56.  Before its departure, the Party managed to take photos to capture that water pipes originally supplying water to the 3 Units had section thereof and their related water meters removed. These photos were produced at trial before me.

57.  Thereafter, the applicant had complained to Mdm Wong about rejection of the Application, respondent’s refusal of reconnection of the said Supply, removal of water meters relating to, and removal of section of water pipes supplying to, the 3 Units.

58.  The Manager replied the applicant repeating respondent’s earlier stance of objection on the ground that the said UBW had been erected over the 3 Units.

59.  In March 2021, the applicant took out this application.

D.  Declarations & order sought

60.  The remaining relief sought by the applicant in her notice of application, as I understand them, can be reduced in words to become as follow (bold and italics for emphasis) for discussion purpose: -

(1)	declaration that she has full right and liberty to have access to the Building and common parts thereof for purposes connected with use and enjoyment of the 3 Units (the 1st Declaration);
(2)	declaration that she is entitled to obtain electricity supply and/or reconnection of electricity supply to the 3 Units by making such arrangements and commencing necessary inspections and works at the Building and common parts thereof and the 3 Units by HK Electric (the 2nd Declaration);
(3)	declaration that she is entitled to obtain water supply and reconnection of water supply for the 3 Units by repairing and replacing water meters and water pipes for the 3 Units and carrying out related works for the 3 Units at the Building, common parts thereof and the 3 Units by her contractors and WSD (the 3rd Declaration);
(4)	declaration that she is entitled to carry out renovation for and within the 3 Units to the extent of not making structural alteration in the 3 Units which may damage other parts of the Building whereby its structural strength may be affected (the 4th Declaration and the 1st to 4th Declarations collectively the Declarations); and
(5)	order that the respondent and the Manager should allow the applicant and her contractor to have access to the Building and common parts thereof for purpose of obtaining electricity and water supply and commencing renovation for the 3 Units as mentioned in (2) to (4) above (the Order).

E.  Respondent’s submissions

61.  Mr Cheung referred this Tribunal to the criteria commonly adopted by Appeal Tribunal (Buildings)[21] in finding for “building works” and stressed that the said UBW over the 3 Units, and similar unauthorized building works over “flat roof” unit B, had in effect added or created an extra storey of 3-dimensional enclosed dwellings at the two sides of 3/F podium of the Building when the original flat roofs at its 2 ends were uncovered 2-dimensional surface only.

62.  He submitted in his written opening that the applicant had been in breach of clauses 4(k)(iii)[22], 4(m)(i)[23] and 10[24] of the DMC in allowing the said UBW to remain, and in continuing to use the said UBW erected, on the 3 Units.

63.  Mr Cheung emphasized that the respondent has not only the right, but was also duty bound under s.18(1)(c) of BMO[25] (and on case law[26]) to enforce the aforesaid provisions of the DMC in having the said UBW removed.

64.  It is therefore, he submitted, legitimate for the IO to reject the Application and to refuse the said Supply, whose water and electricity could only be intended to be used by tenants occupying, and making use of, the said UBW after the 3 Units are rented out. Allowing the said Supply would amount to giving legitimacy to the said UBW and inconsistent with the respondent’s said duties.

65.  Notwithstanding that the applicant had submitted to the Injunction, Mr Cheung made clear that the respondent continues to oppose the Declarations and the Order sought.

66.  He submitted that the applicant’s case in her notice of application was premised upon the said UBW remains not demolished. Permission for the Application was sought on that premises. Applicant’s rental loss claimed against the respondent could not be explained otherwise. The applicant had also admitted such past intention or plan in the box. The said Supply would, not, and could not possibly, be made available to the occupants or tenants of the 3 Units without the said UBW. The applicant, he submitted, should not be allowed to depart from her pleaded case to seek relief on a different premises and her claim should be dismissed on this ground alone.

67.  By way of fallback submissions, Mr Cheung submitted that it remains meaningless for the applicant to have the said Supply to the 3 Units even after the said UBW have been demolished under the Injunction. After such demolition, the 3 Units would, he submitted, likely be restored to become uncovered 2-dimensional surface of flat roofs at the two sides of 3/F podium of the Building.

68.  Mr Cheung sought to distinguish 盈欣投資有限公司 v 雲峰大厦業主立案法團[27], unreported, LDBM 423/2007, 18 April 2008 (Summit Court Case) relied upon by Ms Ho. In Summit Court Case, the occupation permit issued in 1966 therein at least permitted the “main roof” thereof to be used for “drying shelter”. In our case, OP permitted nothing at all for “flat roof” of the Building.

69.  The uncovered flat roofs after they are restored could not, he submitted, have any meaningful, lawful or even practicable user after their reinstatement as ordered under the Injunction.

70.  Furthermore, in line with recent Court of Appeal decision of 383HK Ltd v IO of Tak Bo Building [2018] HKCA 164, 21 March 2018 (Tak Bo Building Case), he submitted that the current electricity wires serving the 3 Units and the 3/F electricity switchbox serving, inter alia, the 3 Units and the current incomplete water pipes and the former (but now disappearing) meters serving the 3 Units could not possibly have been installed within the Building at the time of the making of the DMC.

71.  And there is, he further submitted, no or insufficient evidence adduced at trial to prove that the above electricity and water supply systems were subsequently installed with unanimous or majority (as the case may be) approval of all the owners of the Buildings at common law or under the DMC.

72.  As such, the applicant cannot, Mr Cheung submitted, enjoy her right under Clause 3(d) to free and uninterrupted passage of water and electricity through the existing water and electricity networks (even after their reconnection, switching on and/or repair by WSD, HK Electric, their technicians and/or her contractors, as the case may be).

73.  For the above submissions, Mr Cheung asks this Tribunal to dismiss all the remaining claims of the applicant.

F.  Applicant’s submissions

74.  Ms Ho started off her closing by disagreeing with Mr Cheung that the applicant had departed from her case as pleaded in the notice of application. The said Supply, she stressed, is in no way linked to the said UBW at all as suggested by Mr Cheung. It was, she stressed, required purely for the users of the 3 Units.

75.  While the applicant had agreed by the Injunction to demolish the said UBW (and reinstate the 3 Units) as required by the 3 Notices, Ms Ho stressed that the extent of future demolition (and reinstatement) is unclear on the face of the 3 Notices and the same requires clarification with BA. It is thus premature and speculative, she says, for Mr Cheung to suggest that the 3 Units would likely be restored to become uncovered flat roofs or 2-dimensional surfaces at the two sides of 3/F podium of the Building and that it would be meaningless for this Tribunal to grant the Declarations sought.

76.  Ms Ho asked this Tribunal to note that the respondent had in its notice of opposition advanced only one positive ground to oppose applicant’s claim i.e. erection of the said UBW over or on the flat roofs at 3/F of the Building. Given that the applicant has now agreed to demolish the said UBW, she submitted that the respondent could no longer have any objection to the Declarations and the Order.

77.  Ms Ho relied on Clause 3(d) in support of applicant’s claim for the 2^nd & 3^rd Declarations. She submitted that, as registered owner of 3/10 of 4/77 shares of the Land and the Building, the applicant qualifies as an “owner” defined in the DMC and is thus entitled, or has the right, to the said Supply under Clause 3(d).

78.  The said Supply, Ms Ho stressed, is required by the applicant for proper use and enjoyment of the 3 Units and should be not denied by the respondent. She sought support from the Summit Court Case, whereby it was ordered that the main roof owner thereof is entitled to electricity supply so long it does not involve structural alteration in breach of deed of mutual covenant and in compliance with such requirements of, inter alia, HK Electric and that the incorporated owners thereof shall not reject the said owner’s application to connect electricity and to install separate electricity meter at its own expense[28].

79.  Even after compliance with the Injunction, there could well, Ms Ho stressed, be quite a number of future lawful non-domestic users available to prospective tenants or occupants of the 3 Units, with “storage” and “flower growing” suggested by the applicant in the witness box as being two of many possible candidates.

80.  Unlike the case of Leung Nai Hang & another v IO of Success Industrial Building, unreported, HCA 1570/2010, 31 October 2014 (Success Industrial Building Case), where the plaintiff needed to install gas pipes on and over common parts to supply gas to its unit for business purpose (which met the opposition of the defendant incorporated owners), two systems are, said Ms Ho, now in place within the Building for the said Supply to the 3 Units (though they needs to be reconnected, to be switched on or repaired, as the case may be) in order for the applicant to enjoy her right to free and uninterrupted passage of water and electricity in Clause 3(d).

81.  Inference could, Ms Ho argued, be drawn on the totality of the evidence adduced at trial, including the old and dilapidated state of the said UBW, the fact that the 3 Units together with flat roof unit B were assigned in 1988 by “the Eighth Owner”[29] named in the DMC (which is likely the majority owner of the Building or its developer), the design of the 3/F switchbox as a whole serving all 10 units on 3/F of the Building and the same location used for installing individual water meters regarding water supply to all 3/F units, to prove that the above 2 systems were installed at the time of the making of the DMC or subsequently with the unanimous or majority approval, as the case may be, of all the owners of the Building as required by Tak Bo Building Case.

82.  Ms Ho further pointed to the absence of provision in the DMC requiring the applicant to obtain approval from the respondent or the Manager to carry out renovation to the 3 Units. They are not, she stressed, “common parts” defined in the DMC but private properties over which the applicant is entitled to their exclusive use and occupation under the DMC. The applicant is thus, she argued, entitled to the 4^th Declaration sought.

83.  Ms Ho finally relied on clauses 3(a) and 3(e) of the DMC[30] in support of applicant’s claim for the 1^st Declaration and the Order. In view of respondent’s persistent and wrongful obstruction to her exercising her right to the said Supply, including events happening on 3 December 2019, the 1^st Declaration and the Order are, she submitted, also required to be granted by this Tribunal.

84.  For the above submissions, Ms Ho urged this Tribunal to grant the remaining claims to the applicant in full.

G.  Discussion

85.  Firstly, while it is true that, in terms of historical facts or my factual findings, (i) the Applicant did make the Application while the said UBW was in existence; (ii) the Party did arrive in December 2019 to reconnect the said Supply while the said UBW was in existence; and (iii) the Applicant did solicit tenancy for the 3 Units through estate agents while the said UBW was in existence and she never gave any indication of their removal until this trial, the applicant’s claim those advising her had carefully put down in writing for her does not, however, link up the said UBW with the said Supply.

86.  In her notice of application (and reply), while giving the said UBW as reasons given by the respondent for rejection and obstruction, the applicant, I agree with Ms Ho, sought the said Supply “for the Disputed Roof Units” i.e. for the 3 Units[31] pursuant to Clause 3(d)[32] without mentioning about maintaining the said UBW, or alleged structures thereon, as part of the 3 Units.

87.  In seeking the Declarations and the Order “for the Disputed Roof Units” for the future, the applicant also avoided mentioning about maintaining the said UBW as part of them.

88.  To the contrary, it was, I observe, the respondent which linked the said UBW with the Application and the said Supply in its notice of opposition. For example, paragraphs 10 reads: “…Likewise, any Renovation Works to these UBW would be unauthorized building works too”. Paragraph 12 reads: “…the Application was intended to be made to the UBW which in itself was illegal”. And paragraph 17 reads: “…the Chairman forbad the connection works of the electricity and water works to the UBW only”.

89.  Of course, in defending against “independent” counterclaim raised by the respondent for the removal of the said UBW, the applicant either made no admission on, say, their “illegality” or raised positive matters like “consent from predecessor” or “proprietary estoppel” to seek their maintenance[33]. But, by submitting to the Injunction, those advising the applicant must have by then realized the inevitable failure of her defence on facts and/or law (for this reason, I find it unnecessary to rule on the 3 clauses of the DMC relied upon by the respondent in opposing the continued existence of the said UBW at paragraph 62 above).

90.  I therefore conclude that the applicant has not departed from her pleaded case as submitted by Mr Cheung.

91.  Secondly, I agree with Mr Cheung that, after the applicant has compiled with demolition and reinstatement works required by the 3 Notices ordered by the Injunction, the 3 Units should, more likely than not on all the evidence adduced at trial, be restored to become uncovered 2-dimensional “flat roofs” surface as they were originally “approved” of by the BA (and stated by the BA in the 3 Notices) and originally drawn on 1^st 3/F Plan.

92.  The applicant has, I think, failed miserably to adduce contrary evidence to suggest any different outcome. She claimed under cross-examination that she had belatedly called BA only the day before trial, asked about possible erection of parapets on the sides of the 3 Units and was told to put in proper application through registered persons or contractors.

93.  Irrespective of the truth of applicant’s claim above, she had, I think, plenty of time and opportunity since service of the 3 Notices to make necessary enquiries and applications with BA to make good her claim of alternative outcome of demolishing the said UBW and reinstating the 3 Units and/or to have engaged registered contractor and person to commence, if not complete, demolition of the said UBW with possible reinstatement plans thereof approved by BA.

94.  With 2-dimensional uncovered “flat roofs” surface restored after reinstatement of the 3 Units, I agree with Mr Cheung that there is simply no permitted or lawful user for them by BA or under the DMC.

(i)	There was no permitted user at all for “flat roof” on 3/F of the Building on OP. Instead, for 3/F, “one office per floor” was allowed for “non-domestic use”;
(ii)	Under the DMC, the 3/F (on which floor, OP allowed “one office per floor” only) shall be used for “commercial purposes only”; and
(iii)	Hanging up clothing or laundry outside the Building is not allowed except with written consent of the manager under the DMC, with proviso for owner of the Main Roof only. No proviso for “flat roof” owner can be found.

95.  Hence, I find it unnecessary to imagine, or decide, myself what possible use the 3 Units after restoration as “flat roofs” surface could practicably be put to, be it storage[34] or flower growing as suggested by the applicant in the box or not.

96.  I therefore agree with Mr Cheung that Summit Court Case relied upon by Ms Ho can be distinguished from our case for the material difference between the 2 occupation permits as pointed out by him. The occupation permit in that case reads: “Roof: 2 drying shelters per block for non-domestic use (bold supplied)”[35]. It was in line with such permitted user that the Presiding Officer therein accepted that the flat roof owner required electricity supply for “drying machines” to have proper use and enjoyment of the said roof. Had the said owner required electricity supply for “domestic” purpose, he made it clear that he would not have allowed that.

97.  Moreover, it appears that the roof in Summit Court Case was allowed to be “covered” in part in the approved plans[36] while the enclosure of the 3 Units in our case was not approved by BA at all. This is a second feature which distinguishes the 2 cases.

98.  Given that there is no permitted user for their original 2-dimensional surface after the 3 Units owned by the applicant are restored as uncovered “flat roofs” as they were “approved” in the first place, the Summit Court Case cited by Ms Ho can, I think, no longer lend support to applicant’s right to the said Supply to the 3 Units for her proper use and enjoyment of them. It is, I agree with Mr Cheung, meaningless for the applicant to have the said Supply even after her compliance with the Injunction.

99.  Thirdly, were I wrong on the user permitted for the 3 Units above, Ms Ho is, I think, correct to submit that (i) the applicant is an “owner” in terms of the DMC; (ii) the 3 Units are private properties owned by her (as opposed to common parts); and (iii) pursuant to Clause 3(d), where there is a supply system in place, the applicant has the right to free and uninterrupted supply of water and electricity through the existing network to and from her private properties. Success Industrial Building Case cited by her supports proposition in (iii), That was a case where Zervos J. analyzed a clause similar to Clause 3(d) in the context of an application to install new gas pipes over common parts in order to obtain gas supply to an individual owner’s property.

100.  On the proper construction of the words “which now are or may at any time hereafter be (bold supplied)” in Clause 3(d), the said supply system for the applicant to have her right to free and uninterrupted supply of water and electricity, as was said in Success Industrial Building Case and confirmed later in Tak Bo Building Case, could either be that existing at the time of the making of the DMC or by way of network to be subsequently installed in the Building.

101.  Nevertheless, I do not agree with Ms Ho’s submissions that:

(i)	the 2 existing systems of electricity and water supply to the 3 Units have, on evidence adduced before me, been proven to have already been installed at the making of the DMC;
(ii)	it is open to the applicant to run a case that the said 2 systems were installed subsequently to the making of the DMC; and
(iii)	sufficient evidence has been adduced to prove (or for me to infer) on the balance of probabilities that the said 2 systems were installed subsequently to the making of the DMC “with unanimous or majority approval, as the case may be, of all the owners of the Building” required at common law or under the DMC.

102.  In Tak Bo Building Case, the Court of Appeal confirmed that, in a case involving a clause identical to Clause 3(c), the said clause does not give any individual co-owner’s any right to install connecting pipes over the common parts of a building. It merely provides for the right to have free and uninterrupted passage and running of water from and to a co-owner’s part of the building either through water pipes already constructed at the time of the making of the deed of mutual covenants or through any future pipes to be subsequently installed in the building.

103.  Approving Zervos J.’s approach of “collective responsibility and decision-making” for installation of new pipes in Success Industrial Building Case, the Court of Appeal also held in Tak Bo Building Case that the laying of new water pipes over the common parts of a building is for all the owners, and not for individual owner, to decide.

104.  After analyzing the interplay between common law and BMO, the Court of Appeal considered the above conclusion in line with prohibition in s.34I(1)(a) of BMO[37], which modifies the otherwise strict common law requirement of unanimous consent from all co-owners before new pipes could be lawfully laid at common parts by allowing such installations to be approved instead by majority resolution of owners’ committee (or that of management committee after a corporation is incorporated[38]).

105.  Tak Po Building Case is the latest decision on the subject issue given in 2018. It was decided by the Court of Appeal. Though Summit Court Case was not cited in it, the court has considered therein a number of previous authorities, including Success Industrial Building Case which cited Summit Court Case, before arriving at the principles above. Reading the 2^nd and 3^rd Declarations and the Order, it is apparent that works are required to be carried out for the said Supply at common parts of the Buildings (connection with the main supply to the Building is, one thinks, required at the very least). Indeed, the 3/F switchbox is located at, I think, common parts of the Building[39]. I therefore see no good reason not to apply the above principles binding on me to this case. Neither did Ms Ho nor Mr Cheung argue otherwise.

106.  Returning to my disagreement with Ms Ho’s submissions in paragraph [101] above, I think it likely that the said Supply (and the related meters, pipes, wires and switches) was only connected and installed at the same time of, or after, the erection of the said UBW over the 3 Units in about 1973 and not at the earlier time of the making of the DMC in 1966. The said Supply was, one thinks, likely required and arranged for only after the said UBW was erected over the 3 Units and not earlier.

107.  There is simply no evidence before me to suggest that the existing supply systems to the 3 Units had already been constructed at the time of the making of the DMC in October 1966. No reference to “flat roof” or “flat roof” units was made in the DMC itself. And, 5 months ago i.e. in May 1966, OP made no reference of “flat roof” either.

108.  At paragraph 20 of Reply filed by the applicant, she has, I observe, only presented a case of the said supply system above installed at the time of the making of the DMC. It is therefore, I think, not open to the applicant to assert that another supply system came to be installed subsequently for, Ms Ho submitted, all the units at 3/F of the Building, including the 3 Units.

109.  In any event, even taking into account such factual matters urged by Ms Ho in paragraph [81] above for drawing the inference she called for, one needs to consider at the same time.

(i)	the strict common law requirement of getting unanimous consent of all owners of the Building;
(ii)	the fact that building works contrary to the layout in the 1st 3/F Plan and contrary to permitted user under OP had been carried out at 3/F affecting only all now ten 3/F unit owners but not all the owners of the Building;
(iii)	the lack of evidence adduced on formation of owners’ committee pursuant to the DMC[40];
(iv)	the fact that Mr Ma has served as chairman of the respondent since about 2001 and the hostility that he has displayed to the said UBW;
(v)	the switching off of the electricity switches serving the 3 Units in the said 3/F (and not entire building) switchbox sometime after November 2017; and
(vi)	the cutting off of supply pipes, and removal of individual water meters, serving the 3 Units at the same pictured location serving all 3/F units (and not all units) of the Building sometime after November 2017.

110.  Taking these other factual matters into account at the same time, one cannot, I think, infer “unanimous consent from all owners, or majority resolution of owners’ committee or of management committee of the respondent” approving the said subsequent installation of the above supply systems to the 3 Units.

111.  Accordingly, had the said case of the supply systems above subsequently installed been open to the applicant to prove, she had failed, I agreed with Mr Cheung, to prove that these systems subsequently installed had been lawfully put in place at common parts of the Building for her to exercise her DMC right to the said Supply.

H.  Conclusion

112.  The applicant has, I conclude, failed on the evidence adduced before me to prove her right to the said Supply under the DMC for proper use and enjoyment of the 3 Units owned by her in accordance with the applicable law.

113.  As such, I find it inappropriate or unnecessary to exercise my discretion to grant the Declarations and the Order sought by the applicant against the respondent.

I.  Disposition

114.  I dismiss applicant’s outstanding claim for the Declarations and the Order. And I give leave to the applicant to withdraw her claim of damages against the respondent.

J.  Costs

115.  Costs normally follow the event after trial. I make an order nisi that the costs of this application, including all reserved costs and costs of this trial with certificate for counsel, be paid by the applicant to the respondent, to be taxed on District Court scale if not agreed.

116.  Finally, I thank both counsels for their submissions.